Jia Lal And Another (In Jail) vs State Of U.P.
2014 Latest Caselaw 6759 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Criminal Appeal No. 405 of 2001
 

 
(1)  Jia Lal son of Chote Lal
 
(2) Shyama Devi, wife of Jia Lal
 
	Both residents of village Mian Ka Purwa, Majre Panah Nagar, P.S. Kunda, District Pratapgarh 		
 
						...		Appellants
 
Vs.
 
State of U.P. 				... 		Respondent
 

 

 

 
Hon'ble Imtiyaz Murtaza, J. 

Hon'ble Ashwani Kumar Singh, J.

( Delivered by Hon'ble Imtiyaz Murtaza, J. )

By the instant appeal the appellants have challenged the judgment and order dated 4.5.2001 passed by IV Additional Sessions Judge, Pratapgarh in Sessions Trial No. 580 of 1998, convicting the appellants under Section 302/34 IPC and sentencing to undergo imprisonment for life and imposing of fine of Rs. 5000.00. In the event of default in payment of fine, the appellants shall undergo imprisonment for further six months imprisonment. Under Section 323/34, appellants have been sentenced to undergo six months' simple imprisonment. Both the sentences were directed to run concurrently.

Brief stated, according to the prosecution case, report of the incident was lodged by Kandhai Lal alleging that he is resident of Mian Ka Purwa, P.S. Kunda, District Pratapgarh. On 2.9.98 at about 9:30 p.m. his father Chhote Lal had verbal altercation with his elder brother Jia Lal and Jia Lal's wife Shyama Devi in connection with partition of the house. The informant forbade them but they did not pay any heed. Thereafter Jia Lal and his wife started assaulting his father with saria. The informant and his wife tried to save his father but theywere also assaulted.. When both of them fell on ground, Jia Lal and his wife again assaulted his father resulting in serious injuries on the head of his father Chhote Lal and he succumbed on the spot. On raising alarm, informant's mother and many other villagers reached there. The report of the incident lodged on 3.9.98 at 1:20 a.m. After registration of the case, S.I. Shailendra Singh alongwith S.O. Dhirendra Kumar Upadhyaya reached at the place of incident but due to paucity of light inquest could not be prepared. The next morning at 6:45 a.m. he prepared inquest on the dead body of Chhote Lal. Statement of inquest witnesses, namely, Ram Sajiwan, Abdul Karib, Awdhesh Kumar, Dhuti Lal and Shiv Nath were recorded. Naksha lash and other relevant papers were prepared and the dead body was dispatched for postmortem. On 4.9.98 S.O. Dhirendra Kumar Upadhyaya had recovered saria from the house of Jia Lal and prepared recovery memo, which is Ex. Ka-2. PW-8 Sunil Dutt Dubey SHO P.S. Kunda proved the chik F.I.R. and G.D. Entry which is Ex. Ka-3. He recorded statement of the informant Kandhai Lal. Thereafter he was transferred. PW-9 Dhirendra Kumar Upadhyaya investigated the case after the transfer of PW-8. He proved the site plan, Ex. Ka-16, collected blood stained and plain earth, Ex. Ka-17. He got recovered saria on the pointing out of the accused Jia Lal. He recorded the statements of eye witnesses and submitted charge sheet which is Ex. Ka-20.

PW-5 Dr. A.K. Srivastava had medically examined Smt. Meena Devi on 3.9.98 at 1:35 a.m. and noted the following injuries:

1. Abraded contusion 2 cm x 1.5 cm on right side of skull 5 cm above right ear;

2. complaint of pain right side lumbar region back;

3. Abrasion 3.5 cm x 0.5 cm in left fore arm, 6.5 cm above wrist joint;

4. complaint of pain in left leg.

In the opinion of the doctor all injuries were simple and caused by hard blunt object, except injury no. 3 which was caused by friction. The injuries were fresh. Dr. Srivastava also medically examined Kandhai Lal and noted following injuries:

1. Contusion 2.5 cm x 1 cm on left side of forehead, 1.5 cm above eye brow;

2. Contusion 4 cm x 1 cm on right side on spine of scapula;

3. complaint of pain in scrotum.

In his opinion the injuries were simple and caused by hard blunt object and were fresh.

PW-6 Dr. V.P. Misra had conducted autopsy on the dead body of Chhote Lal on 3.9.98 at 2:30 p.m. and he noted following ante mortem injuries on his person:

1. Lacerated wound 3 cm x 1 cm x bone deep over right side of parietal region, 1 cm lateral to midline;

2. Contusion 1.5 cm x 0.5 cm front of right shoulder joint;

3. Contusion with diffused swelling, 3 cm x 3 cm rounded over right side of forehead, 23 cm above hair margin.

In internal examination, he found fracture on right parietal bone, brain congested with blood clots at places. In the opinion of the doctor death was caused due to shock as a result of ante mortem injury (head injury).

After submission of charge sheet, the case was committed to the court of Sessions. The Sessions Judge had framed charges under Section 302/34 IPC and 323/34 IPC. The case of the defence was of denial and false implication and they claimed trial.

The prosecution in order to prove its case examined in all nine witnesses. PW-1 Kandhai Lal, PW-2 Ramjasi, PW-3 Mahadev, PW-4 Triloki Nath are eye witnesses of the case and rest of the witnesses are formal in nature.

Defence had examined DW-1 Dr. Rajesh Srivastava who had medically examined the accused inside the jail. He noted following injury on the person of accused Shyama Devi:

"A curved Lacerated wound present over left occipital region, 5 cm above to the left occipital process, 5 cm x 1 cm size. Pus present on wound."

In the opinion of the doctor, this injury was caused by a hard and blunt object and about 2-3 days in duration.

He also medically examined the other accused Jia Lal and noted following injuries on his person:

1. A lacerated wound 0.5 cm x 0.3 cm in size, present over right occipital region, pus present;

2. A contusion 3 cm x 2 cm in size present over right shoulder. Bluish in colour.

These injuries, in the opinion of the doctor, were caused by hard and bound object and were simple in nature. Injuries were about 2-3 days duration.

The Sessions Judge after considering the entire evidence on record convicted the appellants, as aforesaid which gave rise to the present appeal.

We have heard learned counsel for the appellants and learned AGA for the State.

Counsel for the appellants submits that the prosecution could not establish presence of the alleged eye witnesses at the time of incident. Prosecution has also failed to explain the injuries sustained by the accused.

It is further submitted that the Sessions Judge has wrongly convicted the appellants under Section 302/34 IPC in the given facts and circumstances of the case.

In order to appreciate the submission of the counsel for the appellants, we have carefully examined the evidence on record.

PW-1 Kandhai Lal is informant of the case and is younger brother of the appellant Jia Lal. He deposed that the incident had taken place about 11 months back on 2.9.98 at about 9:30 p.m. in front of his house. He was present at the time of incident. Some altercation ensued between his father deceased Chhote Lal and the accused Jia Lal in relation to partition of house. He asked them not to quarrel and as the night had fallen, he suggested them to settle the dispute by calling Panchayat in the morning. In the meantime, Shyama Devi brought saria and handed over to Jia Lal and Jia Lal started assaulting his father with saria. Shyama Devi caught hold of his father and Jia Lal inflicted 2-3 saria blows on his father which caused injury on his shoulder and back and blood started oozing out from the head injury. After assaulting his father he assaulted him also. His wife who reached there hearing the clamour was also assaulted. He and his wife sustained injuries which were caused by Jia Lal. His father succumbed to the injuries on the spot. Jagannath, Gayadin etc. also reached there. His other elder brother Jagesar also reached there. All these people witnessed the incident. He got the report scribed by Pradhan Shobha Ram and he proved the F.I.R. Ex. Ka-1. Thereafter he was referred to the hospital for medical examination. After 2-3 days of the incident he was interrogated.

PW-2 Ramjasi, wife of the deceased, also supported the prosecution case and deposed that Jia Lal is his real son. Jia Lal had assaulted with saria which was handed over to Jia Lal by his wife. She also stated that some altercation had taken place between Jia Lal and her husband on the issue of partition of the house. She identified the accused by voices as she was not able to see. She also stated that Jia Lal had hit one fist blow to her. Kandhai also sustained injuries at the hands of Jia Lal. The investigating officer had interrogated her.

PW-3 Mahadeo has proved the recovery of saria on the pointing out of Jia Lal. He also proved recovery memo of saria, Ex. Ka-3.

PW-4 Constable Triloki Nath was posted as Constable Moharrir at P.S. Kunda. He has proved the Chik F.I.R. and G.D. Entry.

PW-5 Dr, A,K, Srivastava had medically examined the injured Meena Devi and Kandhai Lal.

PW-6 Dr. V.P. Misra had conducted autopsy on the dead body of the deceased.

PW-7, PW-8 and PW-9 are the investigating officers of the case and are formal witnesses.

We have carefully examined the evidence on record and the medical examination report.

There is no dispute that both the accused had sustained injuries. Though according to the eye witnesses accused had not sustained injuries but the Sessions Judge has accepted the injury of the accused persons and observing that that the accused had admitted that some altercation had taken place between the deceased and the accused, held that thus, the injuries are explained. As a matter of fact, the eye witnesses had suppressed the injuries caused by accused persons and did not come with clean hands.

We agree with the submission of the learned counsel for the appellants that on the basis of evidence on record including the nature of injuries sustained by the injured persons and the deceased, the offence would fall under Section 304 IPC and not under Section 302 IPC. The deceased had sustained in all three injuries out of which two are simple in nature and did not result in death of the deceased. Similarly the injured witnesses had also sustained simple injuries only. One injury, namely, lacerated wound on head, sustained by the deceased resulting in fracture of parietal bone was the cause of his death. In the opinion of the doctor this injury alone is not sufficient in ordinary course of nature to cause death.

Looking to the origin of the incident viz. altercation ensued between the parties and thereafter Jia Lal assaulted the deceased and the fact that injuries are not sufficient in ordinary course of nature to cause death, we are of the view that the appellants ought to have been convicted under Section 304 IPC instead of 302 IPC.

The appellant no. 1 is in jail for the last 16 years approx. and the appellant no. 2 was released on bail in the year 2007 i.e. after spending a period of six year in incarceration.

In the facts and circumstances of the case, the sentence already undergone by the appellants would meet the ends of justice.

In view of above, the conviction of the appellants under Section 302/34 IPC is altered to be under Section 304/34 IPC and the sentence under this Section is altered to the sentence already undergone. The conviction and sentence under Section 323/34 IPC is maintained. The judgment and order dated 4.5.2001 under appeal shall stand modified to this extent.

Appellant no. 1 Jia Lal is in jail. He shall be set free forthwith, unless wanted in any other case. Appellant no. 2 Shyama Devi in on bail. She need not surrender. Her bail bonds are cancelled and sureties discharged.

The appeal is partly allowed.

Let this judgment and order as well as the lower court record be sent back to the trial court for necessary compliance.

Dated: September 22, 2014

MFA